Middleton v. Middleton

⁶²⁹ ROBERT M. BELL, Judge. The issue presented in this case is whether Maryland Constitution, Article III, § 38, 1 prohibits use of civil contempt to enforce a defaulting parent’s court decreed child support obligation when the accrued arrearages have been reduced to judgment. The answer lies in the historical evolution of § 38 and case law. I. In Brown v. Brown, 287 Md. 273 , 412 A.2d 396 (1980), we considered the purpose of § 38 and of its various amendments to that time.

As originally enacted, the Brown Court pointed out, “the provision simply read 'No person shall be imprisoned for debt’ ” and it continued in that form for nearly one hundred years. Id. at 277, n. 2 , 412 A.2d at 398 n. 2. By amendment in 1950, there was excluded from the prohibition “a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children or for alimony.” Id. The 1962 amendment added to the exclusion “the support of an illegitimate child or children”.

Id. These amendments, in effect, modified the meaning of debt, as the courts had defined that term, id. at 281-282 , 412 A.2d at 401 , making uniform the treatment of “alimony ..., wife support and the support of dependent children----” Id. at 282 , 412 A.2d at 401 . Stating that “[t]he evident purpose of the framers was to abolish the useless, and sometimes cruel, imprisonment of ⁶³⁰ persons who, having honestly become indebted to another, were unable to pay as promised,” id. at 279-280 , 412 A.2d at 400 (footnote omitted), citing State v. Mace, 5 Md. 337, 351 (1854), the Court noted that, early on a distinction was drawn “between ‘debt’ within the meaning of Section 38, and a legal ‘duty’ arising from or imposed by law,” id., 287 Md. at 280 , 412 A.2d at 400 , the latter not being subject to the prohibition. Ruggles v. State, 120 Md. 553, 564 , 87 A. 1080, 1084 (1913); State v. Nicholson, 67 Md. 1, 4-5 , 8 A. 817, 818 (1887); Mace, 5 Md. at 350-351 .

The debt/duty dichotomy’s application in the domestic context was traced from Dickey v. Dickey, 154 Md. 675 , 141 A. 387 (1928), through the 1962 amendment. Id. 287 Md. at 280-282 , 412 A.2d at 400-01 . The Brown court, discussing Dickey , noted that alimony was determined to be a “duty growing out of the marital relation and resting upon a sound public policy, and so ... may be enforced by attachment of the person for contempt, and the defendant ... imprisoned.” Id. at 280-281, 412 A.2d at 400 (quoting Dickey, 154 Md. at 681 , 141 A. at 390 .) “On the other hand, wife support, contractually assented to upon dissolution of the marriage,” was accorded a less favored status. Id. 287 Md. at 281 , 412 A.2d at 400 .

Child support also received, before the constitutional amendment of 1950, a different, less favorable treatment, in terms of the § 38 prohibition, than did alimony. Id. As indicated, the 1950 amendment had the effect of treating spousal support, alimony and child support the same for § 38 purposes. The Court opined that “what was sought to be and actually was, accomplished by the amendment was permission to enforce by imprisonment, if need be, the legal and moral obligation of support (when expressed in an equity decree) that parents owe to their children.” Id. at 283, 412 A.2d at 401 .

At issue in Brown , was whether a stepfather could be held in contempt for failure to support his stepdaughter after he had been divorced from her mother. The issue arose because the stepfather had executed a separation agreement requiring him to pay a specific amount for the ⁶³¹ stepdaughter’s support. Defining a dependent child as “an immediate offspring,” id. at 284 , 412 A.2d at 402 (quoting Billingsly v. Bradley, 166 Md. 412, 419 , 171 A. 351, 354 (1934)), i.e., “one who is entitled to support by virtue of a legal duty from another to provide it, independent of contract, without regard to whether the provisions of that agreement are incorporated into a judicial decree,” id. 287 Md. at 283 , 412 A.2d at 402 , we held that contempt was not an available option. The Court concluded that any obligation of a stepfather to support a stepchild is contractual and, therefore, stands on a different footing from that of a father, whose obligation is a noncontractual duty to support his natural or adopted child.

Id. at 284 , 412 A.2d at 402 . Consequently, we said, even though a valid court decree or agreement approved by decree for support of a dependent child is not a debt under section § 38, a contractual or decretal obligation accepted by a stepparent to support a stepchild is not an obligation to support a dependent child. Id. at 285-286, 412 A.2d at 403 .

II

We have consistently held, both before 1950, Kriedo v. Kriedo, 159 Md. 229 -231, 150 A. 720, 721 (1930); Blades v. Szatai, 151 Md. 644, 647 , 135 A. 841, 842 (1927), and after, Carroll County v. Edelmann, 320 Md. 150, 170 , 577 A.2d 14, 23 (1990), Knill v. Knill, 306 Md. 527, 531 , 510 A.2d 546, 548 (1986); Bledsoe v. Bledsoe, 294 Md. 183, 193 , 448 A.2d 353, 358-59 (1982); Kerr v. Kerr, 287 Md. 363, 367-368 , 412 A.2d 1001, 1004 (1980); Brown v. Brown, 287 Md. 273, 281 , 412 A.2d 396, 400 (1980); Rand v. Rand, 280 Md. 508, 510 , 374 A.2d 900, 902 (1977); Speckler v. Speckler, 256 Md. 635, 637 , 261 A.2d 466, 467 ; Johnson v. Johnson, 241 Md. 416, 419 , 216 A.2d 914, 916 (1966); Bradford v. Futrell, 225 Md. 512, 518 , 171 A.2d 493, 496 , (1961); McCabe v. McCabe, 210 Md. 308, 314 , 123 A.2d 447, 450 (1956), that a father has a common law duty to support his minor children. A mother has the same duty. Edelmann, 320 Md. at 170 , 577 A.2d at 23 ; Kerr, 287 Md. at 367-368 , 412 A.2d at 1004 . ⁶³² The source of the child support obligation has been variously described. In Blades , we said [t]he liability of the decedent for the support of his son is not founded on any contract, expressed or implied.

It is simply a natural and legal duty, which is imposed on any father who brings a child into the world. When the court ... gave the custody of the lad to the father, it simply continued by implication that general duty. The obligation under the decree is still a personal one, and does not constitute a debt of the parent. 151 Md. at 654 , 135 A. at 845 (emphasis added). In Kriedo , we recognized that [t]he implied obligation on the part of the father to pay for necessaries for the support of a minor child ... arisfes] by reason of the duty and obligation imposed upon the father by law to provide properly and reasonably for the support of minor children, according to their station in life and the financial ability of the father. 159 Md. at 232 , 150 A. at 721-22 .

Yet another formulation is contained in Edelmann : Parenthood is both a biological and a legal status. By nature and by law, it confers rights and imposes duties. One of the most basic of these is the obligation of the parent to support the child until the law determines that he is able to care for himself. As it is the obligation of the parent to provide the support, so it is the right of the child to expect it____ The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation ... laid on them not only by nature herself, but by their own proper act, in bringing them into this world____ By begetting them, therefore, they have entered into a voluntary obligation____ And thus the children have the perfect right of receiving maintenance from their parents. 320 Md. at 170 , 577 A.2d at 23 -24 (quoting 1 W. Blackstone, Commentaries 447). ⁶³³ Maryland Code (1991) § 5-203(b)(l) of the Family Law Article provides that parents “are jointly and severally responsible for the child’s support, care, nurture, welfare, and education____” That provision, reflective of the common law, Zouck v. Zouck, 204 Md. 285, 298 , 104 A.2d 573, 579 (1954), originally was enacted by the legislature in 1929, as Article 72A, § 1, of Bagby Annotated Code of Maryland.

See Ch. 561, Laws of 1929. As originally enacted, Article 72A, § 1 charged both parents with the “care, nurture, welfare and education” of their minor child. Their responsibilities, “jointly and severally,” for the support of that child were mandated when the section was amended by Ch. 678, Laws of 1951. Thus, since at least 1951, the child support obligation of a parent has been a “ ‘legal duty arising from or imposed by law.’ ” Mace, 5 Md. at 351 .

The obligation is not perfunctory, to be performed only at the voluntary pleasure or whimsical desire of the parent, Palmer v. State, 223 Md. 341, 351 , 164 A.2d 467, 473 (1960), and it cannot be escaped even though the child is illegitimate. Commonwealth of Virginia v. Autry, 293 Md. 53, 61 , 441 A.2d 1056, 1060 (1982). Moreover, the Legislature has made it a misdemeanor for “a parent ... willfully [to] fail to provide for the support of his or her minor child.” See Maryland Code (1991) § 10-203 of the Family Law Article. Failure to provide child support as decreed may also be enforced by contempt.

Rutherford v. Rutherford, 296 Md. 347, 364 , 464 A.2d 228, 237 (1983); Speckler, 256 Md. at 637 , 261 A.2d at 467 ; Johnson v. Johnson, 241 Md. 416, 419 , 216 A.2d 914, 916 (1966).

III

It is the substance of the obligation that the monetary claim represents, not the form that it takes, that is dispositive. 2 In Zouck, 204 Md. at 298-299 , 104 A.2d at 579 , ⁶³⁴ after recognizing the statutory basis for the father’s child support obligation, the Court stated: The fact that the father has recognized his obligation and has agreed in writing to meet it in a specified amount, does not change his duty to a debt nor does it create the relationship of ordinary contract debtor and creditor between the father and the child, or the father and the mother, as the representative of or trustee for the child. His obligation remains the same whether it be calculated and required by original order of court, by voluntary agreement, or by voluntary agreement specifically ordered to be performed by order of court. Nor is it significant that the mother ... has met the obligation which the father violated, so that the money he promised ⁶³⁵ to pay week by week, would now be paid, under court order, in a lump sum____ The fundamental nature of the support looked for by the agreement is not changed because the husband is now required to pay at one time what he should have paid week by week. (Citations omitted).

See Haughton v. Haughton, 319 Md. 460, 464-465 , 573 A.2d 42, 43-44 (1990) (because the husband’s agreement, made in a marital settlement agreement, to pay certain joint, consumer credit debts of the parties did not relate to support or alimony, its incorporation into the divorce decree did not change the obligation it imposed from a debt in the classic sense to an alimony or support obligation); McAlear v. McAlear, 298 Md. 320, 347-348 , 469 A.2d 1256, 1272 (1984) (monetary award, payable in installments and based on similar factors, is not alimony, and, hence, it is not within the § 38 exception); Roberts v. Roberts, 160 Md. 513, 522 , 154 A. 95, 99 (1931) (a wife’s debts for necessaries are not converted to alimony by court order). See also Deichert v. Deichert, 402 Pa.Super. 415 , 587 A.2d 319 (1991) in which that court stated that “[t]he basis of an inquiry into dischargeability under [Bankruptcy Code, 11 U.S.C. §] 523(a)(5) is to question whether the particular debt (obligation) was created to perform a support function____ The substance and function of the debt are to control the determination, rather than the form or title given the debt.” Id. at 422-23, 587 A.2d at 322-23 . It further opined that if a specific obligation in connection with a divorce decree is labelled property division of “equitable distribution,” such designation will not preclude a finding that the debt is, in fact, in the nature of alimony or support and, consequently, not dischargeable. A court is to look at both the intent of the parties and/or the divorce court and the effect/function of the obligation. 402 Pa.Super. at 423 , 587 A.2d at 323 .

(Citations omitted). The United States Supreme Court has recognized, albeit in the bankruptcy context, that the child support obligation is a duty, not a debt, Wetmore v. Markoe 196 U.S. 68, 76 , 25 ⁶³⁶ S.Ct. 172, 175, 49 L.Ed. 390, 393 (1904); Dunbar v. Dunbar, 190 U.S. 340, 351-52 , 23 S.Ct. 757, 761 , 47 L.Ed. 1084, 1092 (1903), and, further, that its essential nature is not changed by the form that a specific claim takes. Wetmore, supra; Dunbar, supra; Audubon v. Shufeldt, 181 U.S. 575 , 21 S.Ct. 735 , 45 L.Ed. 1009 (1901). Addressing the latter point, the Court in Dunbar opined: At common law, a father is bound to support his legitimate children, and the obligation continues during their minority____ In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged him to do; that is, to support his minor children ...

We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reasonable one) in fulfillment thereof should be so discharged. It is true his promise to pay to the mother but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose. 190 U.S. at 351-52 , 23 S.Ct. at 761-62 , 47 L.Ed. at 1092-93 . Put another way, [A] decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but rather a legal means of enforcing the obligation of a husband and father to support and maintain his wife and children.

He owes this duty, not because of any contractual obligation, or as a debt due to ⁶³⁷ the wife, but because of the policy of the law which imposes the obligation upon the husband. Wetmore, 196 U.S. at 74 , 25 S.Ct. at 174 , 49 L.Ed. at 393 . See Howard v. Moore, 580 N.E.2d 999, 1004 (Ind.App.1991) (Ex-husband’s dissolution decree obligation designated as “alimony/maintenance” was nondischargeable in Chapter 7 case as being in the nature of alimony, support or maintenance). See also Williams v. Patton, 821 S.W.2d 141, 145 (Tex.1992), in which the court characterized arrearages as: The function of child support is to help a custodial parent maintain an adequate standard of living for the child---Characterizing arrearages as nothing more than a “debt” owed to the custodial parent ignores the reality that the child is frequently the one who has been harmed by nonpayment and it is the child’s interests which are ultimately sought to be protected.

The payment of arrearages compensates for the wrong to the child at least as much as it reimburses the custodial parent for monies spent on the child. Although the extent to which a child presently benefits from the payment of arrearages varies from case to case, past due child support is still more properly characterized as an unfulfilled duty to the child than a “debt” to the custodial parent.

IV

Crystal R. Middleton, the appellant, and Brian K. Middleton, Sr., the appellee, were married on April 27, 1987, and separated two and one-half years later. They entered into a Consent Order for Custody, Child Support and Visitation, the terms of which, the appellant was awarded temporary custody of the parties minor child and the appellee was to pay weekly child support of $75, payable pursuant to a Consent Earnings Withholding Order. When, after a short time, the